There are really two types of improper solicitation. First, there are those that just ignore the law. These attorneys will have case runners contact injury victims, often making up some story such as telling the victim that the person is working for an insurance company or a claims company and that the person is trying to help the victim get medical care and legal representation. These type of lawyers, who will engage in deception and lie to potential clients, don’t really care about the law. We just have to hope that the authorities will prosecute these people.

The second group doesn’t want to break the law, but they’ll try to find ways to skirt it. For example, it has long been illegal for attorneys to directly contact injury victims within the first thirty days after an accident. But the same prohibition hasn’t applied to medical providers. Thus, a number of attorneys have indirectly engaged in solicitation by having medical providers, primarily chiropractors, solicit clients and then refer those to clients to lawyers. Some accident victims have even shown up for chiropractic appointments only to be met by a lawyer or the lawyer’s representative in the chiropractor’s office.

Plaintiff’s lawyers and insurance companies have worked together to try and close that loophole. In the last legislative session, House Bill 148 was passed, which limits the solicitation by chiropractors and other medical providers.

Naturally, some chiropractors challenged the constitutionality of the law. Late last month, Judge Lee Yeakel, whom I really like (and I’m not just saying that because he’s a judge or I used to see him all the time in the hallway at my kids’ school), issued an opinion siding with the chiropractor and finding the law unconstitutional.

For instance, in the book we caution injury victims about their early contact with insurance companies, specifically telling victims to watch out for an insurance company’s “swoop and settle” tactics. The lawsuit provides evidence to support that recommendation.

As part of the evidence presented to the Court, the chiropractor included the affidavit of Matthew James Burns, who stated that after an accident, a Progressive adjuster showed up uninvited and unannounced and wrote Mr. Burns a small check and “said it was reimbursement for the money [Burns] had already spent on prescriptions [and] had [Burns] sign a paper saying that [Burns] had agreed that they covered [Burns’] medical expense. Before [Burns] could comprehend what was going on and speak to someone for advice, [Burns] found out [that] the paper [he] signed was a full release of all claims.”

This effort to unwittingly deprive Mr. Burns or other injury victims of rights wasn’t some accident; it’s standard operating procedure for some insurance companies. Filed with the lawsuit was also the affidavit of Jorge Portillo, a former Progressive adjuster. Mr. Portillo testified:

I advised people that if they got an attorney, they might not get as good a settlement. I would advise people that if they did not accept a release it was possible that the claim could drag on for a long time, and there would be no compensation until the claim settled or the case was tried.

Many of the injured people, especially minorities, did not have health insurance. Without health insurance they had difficulty seeing a medical professional because they could not afford to pay very much out of pocket. Therefore, when the insurance company offered them a small amount to settle a claim that enabled them to pay for treatment they often would accept the money because they needed money quickly. They were in no position to wait for medical treatment and needed the money.

So the first thing you can learn from the suit is to be very wary about dealing with insurance companies.

A second thing we warn about in the book is not getting care soon enough. A number of people try to ignore their injuries and hope that the injuries will go away. As a result, the victims may not seek care until some time after they are injured.

As part of his argument that the law had negative consequences, Dr. McKinley, the chiropractor who filed the suit, argued that allowing his patients to contact friends or family members that were injured was critical because an injured person needs to get immediate care. He testified:

People need medical evaluation and care immediately after an accident which caused the injury, and it is harmful to a patient to force them to wait until 31 days after such accident…This is contrary to the well known, generally accepted medical standards that early diagnosis, and usually treatment of some kind, is essential to achieving the best medical care and minimizing long-term medical problems.

So the second thing an accident victim can learn from the suit is that patients should seek immediate care for best results.

The third thing that can be learned is that the process is not fair. The biggest criticism of anti-solicitation laws is that they allow insurance companies to take advantage of injured persons. Attorneys and chiropractors aren’t able to contact injured persons for 30 days following a wreck or accident, but insurance companies can. Thus, there is an imbalance of bargaining power during this period because insurance companies can try and settle before accident victims know their rights.

The way to combat this is by educating accident victims of their rights. Dr. McKinley and others argue that their information is merely providing this needed education. While I don’t think solicitation is the proper way to educate accident victims, I do acknowledge that this is a problem. That’s one of the reasons we spend so much time on this website and blog — to try and help injury victims stop themselves from becoming victims.

I dont’ know what’s going to happen to the law. The State of Texas says they’re considering an appeal. It certainly seems from the order that the bill could be narrowed in such a way that it might pass constitutional muster. But until then, at least we can all learn something about the process.